Bank of Baroda v. Geeta Smruti Premises Co-operative Society Ltd.

Section 101 of the said Act before the Deputy Registrar, D Ward, Mumbai only against the Respondent No.2 i.e. the developer seeking issuance of recovery certificate for sum of Rs.87,51,394/concerning arrears of maintenance and other charges with respect to said shop No.3-A. The Petitioner has not been impleaded as party to the said Application. However, the Deputy Registrar, D Ward, Mumbai after noticing that said shop No.3-A was purchased by the Petitioner, issued notice/summons to the Petitioner. The Petitioner was heard by the Deputy Registrar.

(xi) By order dated 21st September 2018, the Deputy Registrar,

Co-operative Societies, D Ward issued Recovery Certificate under Section 101 of the said Act for an amount of Rs.83,97,987/against Respondent No.2 – Developer and further directed that the said amount be recovered from the opponents i.e. the Petitioner and the Respondent No.1.

(xii) The Petitioner filed Revision Application No.115 of 2022

(old Revision Application No.499 of 2016) under Section 154 of the said Act challenging the said Recovery Certificate dated 21st September 2008.

(xiii) The Revision Application filed by the Petitioner has been dismissed by the impugned order dated 30th January 2024 passed by the Deputy Registrar, Co-operative Societies (1), Mumbai City on the ground that the Petitioner has no locus as the share certificate is still in the name of the Respondent No.2. The rival contentions are required to be considered in the light of above factual aspects.

6. In the above background of the matter, paragraph No.4 on page 259 of the impugned order is significant. The said paragraph No.4 of the impugned order contains the reasons given by the District Deputy Registrar for dismissal of the said Revision Application. The said paragraph No.4 reads as under: “4½ izLrqr izdj.kkrhy xkGk dz-3&, gk xkGk vtZnkj cWd vkWQ cMksnk;kauh [kjsnh dsyk vlqu] vn;ki lnj izdj.kh R;kauk lHkklnRo ns.;kr vkysys ukgh- lnj xkGk dz-3&, ojrh es- xhrk dkWiksZjs’ku;kaps uko vkgs- rlsp izfroknh dz-3 fuEu izkf/kdj.k;kauh esllZ xhrk dkWiksZjs’ku;kaP;k ukos olqyh nk[kyk ikfjr dsysyk vkgs- R;keqGs okLrfod esllZ xhrk dkWiksZjs’ku;kauh iqufj{k.k vtZ nk[ky dj.ks vko’;d gksrs- rFkkfi] cWad vkWQ cMksnk;kauh izLrqrpk iqufj{k.k vtZ dsysyk vlY;kps izFken’kZuh fnlwu;sr vkgs- rlsp lHkknlnRo o Fkdckdh gs nksUgh eqnns osxosxGs vlqu] dsoG R;keqGs lsok’kqYdkpk Hkj.kk u dj.ks gh ckc mfpr ukgh- lnj xkGk vn;ki esllZ xhrk dkWiksZjs’ku;kaP;k ukos vlY;keqGs fuEu izkf/kdj.k;kauh ikfjr dsysyk olqyh nk[kyk;ksX; vlqu] lnj nk[kY;ke/;s gLr{ksi dj.;kph vko’;drk ukgh] vls ek>s er >kY;kus [kkyhy izek.ks vkns’k fuxZfer dj.;kr;sr vkgsr-” (Emphasis added) The English translation of the same reads as under: “The Tenement No.3-A concerned in the present matter has been purchased by the Applicant Bank of Baroda, however the membership in respect thereof has not yet been given to the Bank. The name of Messrs Geeta Corporation stands entered against the said Tenement No.3-A. Moreover, the Respondent No.3 – the Lower Authority – has issued a Recovery Certificate against Messrs Geeta Corporation and therefore, in fact, it was necessary for Messrs Geeta Corporation to file a Revision Application. However, prima facie, it is seen that the present Revision Application has been filed by the Bank of Baroda. Further, the Membership and the outstanding amount are two separate aspects and therefore, not making payment of Service Charges only on account thereof is not proper. Therefore, I have arrived at the conclusion that as the said Tenement still stands in the name of Messrs Geeta Corporation, the Recovery Certificate issued by the Lower Authority is proper and that therefore, there is no need to make any interference in the said Recovery Certificate and hence, following Order is passed:” Thus, the District Deputy Registrar has inter alia assigned following reasons for passing the order:-

(i) The Petitioner has not been admitted as member by the

(ii) As the recovery certificate has been issued against the

(iii) The issue regarding payment of maintenance and membership are distinct and different.

(iv) As the said premises still stands in the name of the

7. Thus, following two points arise for the decision by this Court:

(i) Whether the Revision Application, under Section 154 of the said Act, filed by the Petitioner challenging the Recovery Certificate inter alia issued against the Respondent No.2 is maintainable?

(ii) Whether the impugned order passed by the District Deputy aspects of the matter?

8. Section 154 of the said Act reads as under:

9. Perusal of Section 154 of the said Act clearly shows that the said power can be exercised by the State Government or Registrar suo motu or on an Application for the purpose of satisfying themselves as to the legality or propriety of any such decision or order and as to the regularity of such proceedings. It is further provided that if in any case, it appears to the State Government, or the Registrar, that any decision or order should be modified, annulled or reversed, the same can be done. It is also made clear that power under Section 154 of the said Act should not be used unless the person affected has been given an opportunity of hearing.

10. Thus, it is clear that the said power under Section 154 of the said Act can be invoked suo motu or on an application. When it is specifically provided that power under Section 154 of the said Act can be exercised suo motu or on an application and that said power should not be used unless giving the person affected an opportunity of being heard, it is clear that a person who is aggrieved by the Recovery Certificate or who is going to be affected by the issuance of recovery certificate under Section 101 of the said Act also can file Revision under Section 154 of the said Act.

11. As per Sub Section (3) of Section 101 of the said Act, the recovery certificate issued under Section 101 is final and a conclusive proof of the arrears stated to be due therein and shall not be questioned in any Court and only recourse available is revision under Section 154 of the said Act. If the Recovery Certificate is not complied with, then the amount under the Recovery Certificate can be recovered by the Respondent No.1 – Society as arrears of land revenue under the provisions of the said Act. Thus, Section 101 read with Section 154 makes it clear that any person aggrieved by recovery certificate issued under Section 101 can file revision under Section 154 subject to compliance of requirement of Sub Section (2A) of Section 154.

12. As far as Revision Application filed challenging the Recovery Certificate is concerned, such aggrieved person has to comply with the requirements of Sub-Section 2A of Section 154 of the said Act of depositing 50% of the amount of the total recoverable dues.

13. A learned Single Judge in the case of Balaji Atmaram Salokar v. Divisional Joint Registrar, Co-operative Societies, has held that the purport of Section 154 of the said Act is wide enough to entitle any person whether aggrieved or otherwise to maintain Revision under Section 154 of the Act.

14. In this case, undisputedly, the Petitioner has purchased the concerned shop from the Respondent No.2 on 8th April 2008. The Recovery Certificate is issued with respect to non-payment of maintenance and other charges with respect to concerned shop against the Petitioner as well as the Respondent No.2. If the Recovery Certificate is not complied with, then the amount under the Recovery Certificate can be recovered by the Respondent No.1 – Society as arrears of land revenue under the provisions of the said Act. Thus, it is clear that the said shop can be attached and sold for execution of said Recovery Certificate. In any case, the subject recovery certificate inter alia is issued against the Petitioner. Thus, obviously as the recovery certificate is issued against the Petitioner, the Petitioner is aggrieved by the same. 1 2001(2) Mh.L.J.

15. It is clear that the Petitioner is aggrieved person and therefore, can file Revision under Section 154 of the said Act, subject to complying with provisions of Sub-Section 2A of Section 154 of the said Act. Admittedly, the Petitioner-Bank of Baroda has deposited with the Respondent No.1-Society 50% of the total recoverable dues i.e. Rs.48,26,533/- before filing said Revision.

16. Thus, the reasoning given in the impugned order passed by the Divisional Joint Registrar to the effect that the Petitioner has no locus to challenge the Recovery Certificate is contrary to the legal position. It is very clear that the said Revision is maintainable. It is an admitted position that the Petitioner has complied with Sub Section 2A of Section 154 of the said Act.

17. Mr. Lohia, learned Counsel appearing for the Respondent No.1 submitted that although the District Deputy Registrar in the impugned order has observed that the Petitioner has no locus to file Revision Application, however, District Deputy Registrar has also considered the merits. The said submission is contrary to the position on record. The reasoning given by the District Deputy Deputy Registrar in the impugned order has set out in detail from pages 253 to 256 various contentions raised on behalf of the Petitioner in the Revision Application filed before the Divisional Joint Registrar. The Petitioner has raised the contention regarding levy of non – occupancy charges as the Petitioner has purchased the subject premises from the Respondent No.2 – Builder by registered Sale-Deed dated 8th April 2008 and the Petitioner has been directed to be admitted to the membership of the Respondent No.1 – Society and therefore non – occupancy charges cannot be levied. The Petitioner has raised contention regarding levy of interest. The Petitioner has raised various contentions in the Revision Application. None of the contentions are considered by the District Deputy Registrar in the impugned Order. Perusal of the reasons given in the impugned order clearly shows that the various contentions raised by the Petitioner have not been considered.

18. In the facts and circumstances, case is made out for interference in the impugned order under the jurisdiction of this Court under Article 226 of the Constitution of India.

19. Accordingly for the above reasons, following order is passed: ORDER (a) The impugned order dated 30th January 2024 passed by the District Deputy Registrar, Co-operative Societies (1), Mumbai City in Revision Application No.115 of 2022 is quashed and set aside. (b) The Revision Application No.115 of 2022 is restored to the file of District Deputy Registrar, Co-operative Societies (1), Mumbai City.

(c) Both the parties to appear before the District Deputy

(d) The District Deputy Registrar, Co-operative Societies

(1), Mumbai City is requested to decide the said Revision Application No. 115 of 2022 expeditiously. (e) It is clarified that this Court has not considered the merits and all contentions on merits are expressly kept open.

20. The Writ Petition is disposed of in above terms with no order as to costs.

21. In view of the disposal of the Writ Petition, nothing survives in the Interim Application and the same is also disposed of. [MADHAV J. JAMDAR, J.]